LAWTALES

PRESENTS
ADMINISTRATIVE LAW : PCS- J NOTES ( PART – II)

Table of Contents
❖ Ombudsman
❖ Administrative Tribunals
1. Meaning, origin, development necessity & Reasons essential features
2. 42nd Amendment and CAT
❖ Public Corporation
1. Definition
2. Features
3. Parliamentary Control
4. Judicial Control
❖ Commission of Enquiry
❖ Judicial Control of Adm. Action
1. Writ of Prohibition
2. Writ of Certiorari
3. Writ of Habeas Corpus
4. Writ of Mandamus
5. Writ of Quo Warranto
❖ Administrative Discretion
❖ Liability of State
1. Contractual liability
2. Tortuous liability
❖ Public Interest litigation
❖ Miscellaneous
1. Locus Standi rule
2. States Privilege
3. Finality Clause (Bar of court's Jurisdiction)
4. Act of State 97
5. Consumer Protection Act

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OMBUDSMAN
Lokpal & Lok Yukta

Ombudsman:

i) Origin:

The origin of this institution can be traced to Sweden (1809). Rowat's book on 'Ombudsman'
is almost a classic. The necessity of ombudsman is traceable to the deficiencies in
parliamentary system of administration like wrong decisions, mal-administration corruption ,
of public officials etc, The office of -Ombudsman was established in Finland, Denmark,
Norway, U.K. and other States. In U.K. the equivalent office is that of the 'Parliamentary
commissioner' established in 1967. The experiment was a success, in these countries.

ii) Status & functions:

He is the people's Watch-dog. His jurisdiction extends to all actions of the public officials.
The present position is that Ombudsman is appointed for 4 years by a Special Committee
consisting of Parliamentarians. The main qualifications are his outstanding integrity & proved
abilities in his job. He receives complaints, makes the investigation. He has powers to
reprimand the blameworthy officials and criticise their conduct in his Report to the
Parliament. Frivolous & baseless complaints are rejected by him, with reasons. He has
jurisdiction over judges also.

iii) Lokpal :

One of the recommendations of the Administrative Reforms Committee there is absolute

need ,for the establishment of such an office of Ombudsma. The equivalent of Ombudsman is
Lokpal, In order to meet the grievances of citizens and to provide an easy, quick and in-
expensive machinery to meet such grievances, the office of Lokpal is to be established by an
Act. by the Parliament,

iv) Lokyukta :

Lokpal is for the Centre. The Lokyukta is for the States in India. Each State may make law to
establish the office of the Lokyukta. Maharastra established such an office in 1977.
Karnataka has recently established an office.

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v) Nature:

1. He should be demonstrably independent and impartial.

2. His appointment should be no-political. His status should empower him to investigate and
to proceed directly.

3. His proceedings shoud not be subject to judicial scrutiny.

4. He should have an independent office with powers not controlled by the exective.

vi) Appointment:

He is appointed by the President of India on the advice of the Prime Minister, in cosultation
with the Chief Justice of India and the Leader of Opposition in Lok Sabha. On appointment
he becomes nonpartisan. His status and salary are the same as that of the Chief Justice of
India.

vii) Removal:

The procedure is the same as in the case of the removal of the Judges of the Supreme Court.
[Art. 124(4)]. This provides much independence, freedom to act without aspiring for any
favours.

viii) Functions:

He has the investigating powers to investigate into any action of Minister on receipt of a
written complaint or suo moto relating to –

1. Mai-administration.

2. Undue exercise of power.

3. Corruption: Where corruption is established against the Minister, Lokpal may bring to the
notice of the Prime Minister or the Chief Minister and proceed. He submits annual reports.

ix) Immunity :

The Lokpal is immune from any suit, prosecution or other proceedings in respect of official
acts done in good faith, under the Act.

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ADMINISTRATIVE TRIBUNALS

Meaning:

Administrative Tribunals are quasi judicial authorities established under an Act of Parliament
or of State Legislature charged with the duty to discharge adjudicatory functions. Dicey's
Concept of Rule of law is opposed to the establishment of Administrative Tribunals. But
Administrative Tribunals have become a necessity in the modern welfare activities of the
States & they have come to stay with us. A Tribunal means the 'Seat of a Judge',
Administrative Tribunals therefore, are bodies other than the courts. They simulate the courts
and have powers to determine controversies but they are not courts. They have only some of
the 'Trappings of the Courts'. They perform hybrid functions - administrative & judicial.

Origin & development:

The origin of these tribunals can be traced to the French system of Droit Administratiff. It
was accepted in other continental countries. The Donoughmore Committee suggested two
reforms: The tribunals should disclose the reasons & Inspectors report should be published.
The Franks committee was constituted to make recommendation in respect of tribunals and
their functions. It stated the characteristics, of the Tribunals . Tribunals are cheap non-
technical easily accessible, expeditious and have expertise in a particular field. It
recommended

i) for the appointment of a Council over the tribunals to supervise the work of the
Administrative Tribunals.
ii) That the Lord Chancellor should be the appointing authority of the Chairman of the
tribunals.
iii) It suggested that the tribunals should observe certain principles like public hearing,
Representation by lawyers, Principles of Natural Justice etc. The English Tribunals &
Enquiries Act 1958 was passed by Parliament broadly, on the basis of these
recommendations.

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India :

Though there are a number of Tribunals established in India, there is no 'Conseil Detaf of
France or a 'Council over Tribunals' of the British system. Instead the High Courts have
jurisdiction over these tribunals under Art. 226 of the Constitution. A number of Tribunals
have been established in India: Income Tax Appellate Tribunal, Labour Tribunal, Land
Tribunals, Railway Rate Tribunals, Rent control Authority, commissioner for Religious
Endowments, etc.

Necessity & Reasons for Growth :-

(i) The ordinary Courts follow strictly the procedures & the Evidence Act and hence
take much time. However tribunals act rapidly with wide discretionary powers,
basing their decisions on departmental policy & other factors
(ii) Administrative Tribunals with experts on their panel may effectively dispose of
technical problems, as they possesses technical knowledge in particular fields like
labour, Revenues, Excise, wages etc.
(iii) Tribunals are less expensive, and procedures are not complex and formalistic as
in courts. Courts are generally rigid & have legalistic approach. Tribunals are not
bound by strict rules of evidence & procedure codes. They are more pragmatic &
realistic in their approach.
(iv) Tribunals are not costly, and are easily accessible to the affected persons, eg. sales
Tax Appellate Tribunal. Labour Tribunal, Land Appellate Tribunals etc.
(v) Courts decide all questions objectively but the tribunal may decide subjectively on
departmental policy basis.

Essential features :

i) Statutory Origin:

Every Tribunal should have its base in a Statute made by the Parliament or state Legislature.
It cannot be created under a statutory instrument by the executive, or by a resolution.

ii) Composition & Appointment:

The Statute must specify the Composition & special Qualifications of the personnel to be
appointed as Members of the Tribunal, Normally one Presiding Officer, & two Assessors are

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appointed. Persons with Expertise or specialization in a particular field (with administrative

experience) are appointed.

iii) Jurisdiction, Powers & functions:

1. As the jurisdiction has the tendency to oust the jurisdiction of the Civil Courts, the Statute
should specify clearly the nature of jurisdiction, powers and functions.

2. Its powers normally include some of the powers of the Civil Courts in issuing processes, in
securing attendance of witness examining them on oath, to compel production of documents
etc.

3. Members of the Tribunals are public servants.

iv) Procedure:

Though the procedure codes and the Evidence Act is not binding on the Tribunals they
should provide for fair hearing or opportunity & no information should be used against a
person without giving an opportunity to defend. However, it should not violate rules relating
to hearsay or admit documents without proving them. Thus observance of principles of
natural justice is a sine qua non. Decisions of the Supreme Court and the High courts one
binding on then (E.I.C. Co v. Collector of Customs)

iv) Speaking order:

The tribunal should record reasons for its order (Speaking order). This discloses the mind of
the Tribunal, and, prevents arbitrariness. This will also enable the appellate court to decide
the legality of the order.

vi) Review:

Tribunals have no inherent power to review, their decisions; The reason is that once the order
is made, the tribunal becomes functus officio (authority ceases). If is the High court which
has powers to correct the errors of the tribunals.

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vii) Appeals:

The order of the tribunal, has no "FINALITY" and hence, it may be set aside under reference
to the High court. Certiorari or prohibition writ may be issued under Arts 226 & 227 of the
constitution quashing the order of the Tribunal. (Judicial Review).

42nd Amendment and Administrative Tribunals:

The 42nd Constitution Amendment introduced Arts. 323- A & B to enable. Parliament to
make law to constitute Administrative Tribunals to deal with certain disputes. The law
according to it may exclude jurisdiction of all courts except that of the supreme court under
Art. 136 (SLP: Special-leave petition) of the Constitution. This means, by law the Jurisdiction
of the High Courts, Art 226 & 227, could be excluded. Exercising this power, the parliament
enacted the Administrative-Tribunals Act 1985, which in Sn. 28 excluded the jurisdiction of
the High Courts over the Tribunals. This was challenged before the Supreme Court in:
Sampath Kumar V. Union, 1987.

The court held:

(i) The Tribunal is to be a real substitute of a High Court, and should be entitled to
exercise the powers of the High Court. This means the Tribunal is to be a De Jure &
De facto Substitute.
(ii) The Tribunal should have jurisdiction to decide the validity of any statute, rule,
regulation, notification etc. as the High court.
(iii) If the Tribunal falls short of this requirement, there would be denial of the power of
Judicial review which is the basic structure of the Constitution. In fact, the tribunal is
to be an effective institutional mechanism equally efficacious as the High court in the
exercise of Judicial review. Within these parameters, the Ad. Tribunals Act was held
valid and Constitutional. The Tribunal should be a worthy successor to a high court in
all respects if rule of law is to be upheld.
(iv) C A T : e.g. Central Administrative Tribunal Karnataka to deal with civil servants
service matters is one such Tribunal.

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PUBLIC CORPORATION

1. Definition:

A Corporation is an aggregate of persons having its existence, rights and duties separate from
the members who compose it. It has the powers to make regulations. It has a right to acquire
or dispose of property can sue and be sued and. prosecute & be prosecuted. It can enter into
contract It has a legal personality and therefore a "person in the eye of law: (Salmond). It is a
body corporate with perpetual succession and common seal.

2. Features:

(i) Public Corporation is established under a statute. The Statute defines the powers and
functions, the nature of undertaking the business enterprise and also the administrative
functions to be discharged by it. The Corporation is a public authority and the duties imposed
are public in nature.

ii) A Corporation may be established for trading activities. It has two features:

1. That of a Government department.

2. That of a business organisation. Hence it is a hybrid institution. Early Corporations: The

First Indian public corporation established in India was the Bombay Port Trust (1879). This
was a success. The Calcutta & Madras port Trusts were created later (1905). In 1934, The
Reserve Bank of India and in 1935, The Federal Railway Authority were established.

Later Corporations:

A. Commercial : State Trading Corporations, Air India, Indian Airlines, Ashoka Hotel,
H.M.T. etc.

B. Financial : Reserve Bank of India, State Bank of India, L.I.C. Industrial Finance
Corporation etc.

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C. Developmental: ONGC, F. C. I. Damodar Valley Corporation, River Boards etc.

D. Service: E.S.I. Corporation, Housing Board, Hospital Boards, etc.

iii) Appointment:

Normally the Govt. appoints the Chairman, the members of the Board, the secretary & the
Financial Adviser.

iv) Policy:

In all policy matters, the Govt has complete control over the corporations. The trend set after
the Mundhra Affair was to interfere in the least.

v) The Corporation has a right to acquire, hold & dispose of property. It can enter into
contracts and is liable for breach. It is liable for tort.
vi) The statute is the "charter" of the corporation. It should exercise its rights, powers,
functions according to it; otherwise it would be-ultra vires. It has powers to make its
own Regulations as per the charter, (statute)
vii) It is autonomous in its day to day management, and, is a "State" within the definition
of authorities, of Art. 12 of the Constitution. Hence, High courts & Supreme Court
have jurisdiction. This was decided by the Supreme court in Rajasthan State
Electricity Board V. Mohanlal. This is confirmed by the Supreme court in Sukhdev
singh V. Bharatram (1975). Hence Fundamental-rights can be enforced against the
public corporations.
viii) Servants:

Servants of Public corporations are not civil servants and hence are outside Art. 311 of the
Constitution. They are subject to the Rules and Regulations of the corporations. If these rules
are not followed and an employee is dismissed, the dismissal would be void; they are entitled
to reinstatement (Sukhdev Singh V Bharatram: Here dismissed employees of L.I.C, ONGC &
IFC. were held entitled to reinstatement).

ix) Parliamentary Control:

A Corporation as a juristic person is subject to legislative control. The Parliament or state

legislature may control the activities of a Corporation. Questions may be asked in the Houses

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on the actual working of a corporation and effective & suitable changes may be introduced
for the successful working of a corporation. Committee on public undertakings 1964 is
charged with general supervision & comptroller & auditor general is to see whether sound
business principles and prudent practices are being followed. The overall Legislative
supervision and control in public interest are therefore provided for even though it is an
autonomous body.

Govt has the power to appoint and remove the chairman and can therefore effectively control
the corporation. Control in the financial sector is dependent on the Govt's involvement.
Budget proposals are to be submitted by corporations for Govt's approval. Audit of accounts
is done by the comptroller & Auditor General of India. "Directives" may be issued by the
Govt on all matters of Policy. Govt frames the Rules. But Regulations are made by the
Corporations. These should not be against the Rules. Chagla Commission has recommended
a compromise between the Govt. Control & the "Corporations authority" to the effective
exercise of day to day administrative functions.

x) Judicial control:

A corporation is within the definition of "other authorities" under Art. 12 of the Constitution.
As such they are subject to judicial scrutiny under Arts. 226 & 227 by High Courts, and Art.
32- by the Supreme Court. Judicial control is essential when the rights & liberties of persons
are affected. Hence the Courts have jurisdiction over the corporations and have powers to
declare the act of corporation as ultra vires., where such acts are beyond powers. The
corporations are liable for breach of a contractual obligations.

The Theory of separate juristic person of a corporation caused great hardship to the
employees as well as to third parties, by the acts of the Government, through the corporations
Hence, the court may tear the veil of the corporation to know "its real nature", to provide a
suitable remedy.

Leading Cases:

J.I.R. Vs. Sunil Kumar.

Hindusthan Antibiotics V. Its workmen.

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If the regulations or actions of the corporation are illegal, unreasonable or arbitrary, the courts
declare them as ultra vires Art. 14 of the constitution. Hence while granting jobs, largess,
Govt- contracts, tenders, granting of licences, issue of quotas, the corporation should act
according to law & the Constitution. The courts broad parameters are fairness in
administration reasonable management of public business and bona fides.

COMMISSION OF INQUIRY

The Commission of Inquiry Act 1952 is an enabling Act under which the central Govt. or the
state Govt. may set up a 'Commission of Inquiry'.

1. Procedure:

A resolution should be passed in the Lok Sabha or the Legislative Assembly of the State for
the setting up of a commission Inquiry. The appointment is made by notification in the
official Gazette. The purpose of Inquiry, the time within which the commission must
complete and submit its Report of the inquiry, must be specified. Normally a one man
commission is appointed Order of appointment of commission may be challenged before the
High court under Art. 226. The grounds are mala fides, violation of Article 14 (equality) of
the constitution, violation of conditions of commission of Enquiry Act. E.g Sn. 3-1 are not
fulfilled i.e. that the matter is not of public importance etc.

Purpose:-

According to the Act, it must be a matter of public importance. The objective is

(i) To ascertain facts & make legislation if acquired

(ii) To make administrative inquiry & to take appropriate action on individuals,
(iii) To eradicate the evil or mischief in future.

Examples: The Chagla commission to inquire into the Mundra Affairs Tandolkar
Commission to enquire into Dalmia Affairs: Ayyangar Commission to enquire the conduct of
Bakhi Gulam Ahamed, Shah Com- mission to inquire into emergency excesses, etc.

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Status:

The Commission is not a Court, tribunal or a Quasi judicial body. Its primary function is to
inquire into facts & record its finding & to submit its report to the Govt. It is only an
administrative body and is not bound by the C.P.C or the Evidence Act. The only condition is
that inquiry must be fair & impartial.

Procedure & powers :

It may regulate its own procedure and decide the nature of its sitting (Public or Private). The
Commission may exercise the powers of a civil court regarding summoning of witness,
production of documents receiving evidence on affidavits etc. Any other powers may be
notified by the Govt. appointing the Commission.

Other powers:

It may

i) Collect all relevant materials.

ii) record its finding on facts which are investigated by it.
iii) may state its views & opinions,
iv) may make its recommendations as to what future action may'be taken etc.

Report:

The Commission may submit its interim report: it closes its sittings when it submits its Final
Report within the time notified (or extended from time to time). But with the submission of
the Final Report, the Commission is terminated, ie, it becomes "funtus officio". Action may
be initiated against persons, on the basis of the Report.

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JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

Writ of prohibition:

It is a judicial writ, (an order), issued by the Superior court to the inferior court, preventing it
from exercising a jurisdiction which is not legally vested in it: or which it is continuing its
proceedings against the law of the land. (Halsbury) The object of the writ is prevention i.e,
prevention is better than cure. It restrains the lower court, tribunal or Authority from
proceeding further in excess of its jurisdiction. It brings masterly inactivity, to it. It shall close
the case forthwith.

Grounds:

i) In India, the supreme court (Art. 32) the High courts (Art. 226) are empowered to
issue the writ of prohibition to the Lower court, Tribunal or Authority, if it proceeds
to act (i) Without or in excess of jurisdiction
ii) In violation of the principles of Natural justice,
iii) Under a law which is itself ultra vires,
iv) In violation of Fundamental Rights.

Leading cases:

1. Rex Vs. Electricity Commissioner:

The Electricity Act, provided for the appointment of commissioners. They made a scheme for
some districts. They commenced a local enquiry. Certain companies affected by the scheme,
claimed for the issue of a prohibition. The court issued the write & stopped forthwith the
proceedings of the enquiry body, as the commissioner had no jurisdiction.

2. R. V. Local Govt. Board:

The lower authority proceeded to try summarily a charge which was not for trial under the
concerned statute. Prohibition was issued.
3. Mathura prasad V. St. of. punjab.
An item was exempted from payment of tax, but the taxing authority proposed to assess on
such a commodity, in the turn over of the assessee. A writ of prohibition was issued.

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4. Levy of a licence fee without authority was restrained by issuing a writ of prohibition
Abdul Kadhir V. St. of. Kerala.
In Bidi supply Co. V. Union, prohibition was issued to I.T. assessment proceedings when
there was a transfer order from one office to another as this was arbitrary and against Art. 14
of the Constitution.
Limits:
i) It is not issued to purely administrative acts of the Executive
ii) Mere errors or irregularities are not the grounds for writ of prohibition when the
lower court or tribunal has acted within its jurisdiction.
iii) It is issued only if the proceedings are pending in the lower court, tribunal or
authority.

Writ of Certiorari:
Certiorari means 'to certify' It was a High prerogative writ issued by the superior courts to the
interior courts in England. Later these were extended to Tribunals and other executive
authorities who exercised quasi-judicial functions. In India only the Supreme court & the
High courts are invested with the writ jurisdiction under Art. 32 & Art. 226 of the
constitution respectively.

The object of the writ of certiorari is to see that the inferior authorities properly exercise their
jurisdiction. The courts will interfere to quash, a quasi-judicial order which is either without
jurisdiction or against the principles of Natural justice. (The writ of prohibition is issued if the
case is 'pending' in the lower court or tribunal) If the case has already been decided, certiorari
may be issued to quash the decision of the lower court or tribunal.

Conditions:

i) The Lower court or tribunal or authority must be under a duty to act judicially such an
act must affect the rights of the individuals.
ii) There must be want of or excess of jurisdiction (Error of Jurisdiction)-
iii) Contravention of the principles of Natural justice,
iv) To correct an error apparent on the face of the record.

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Leading cases:

Province of Bombay Vs. Kushaldas Advani.

The Govt. of Bombay requistioned the house of K, a tenant, & alloted it to A, under Bombay
Land Acquisition Act. K applied for certiorari The supreme court held that if the certiorari is
to be issued, the lower authority must be exercising quasi-judicial functions. The Act had not
provided for such an authority. This decision is no longer good law as in State of Orissa V
Binapani Dev the supreme court has held, a duty to act judicially is implied when the act is
affecting the rights of persons, and hence if the Act is silent, the court will read into it fair
procedure of Natural Justice in such cases.

ii) Jurisdiction:

R. V. Minister of transport. The minister passed an order revoking a licence though he had no
such power under the Act. Certiorari was issued.

i) Natural justice:

1. Local Govt. Board Vs. Arlidge:

The Housing & Town planning Act 1909, had authorised to issue an order to close a dwelling
house if it appeared to them to be unfit for human habitation. There was an enquiry, its report
was not given to A. there was no oral hearing. A was given an order. He appealed to the
Courts, Held, that there was no violation of Natural justice merely because there was no oral
hearing or the enquiry authority report was not disclosed to A.

2. Ridge Vs. Baldwin:

A chief constable was tried in a case of conspiracy to obstruct justice but was acquitted. The
court made some remarks against him in the judgement. On the basis of this the department
took action and dismissed him from service. No enquiry was conducted. Held, the order was
ultra vires.

3. Gallapalli Nageswara Rao's Case I phase:

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Certiorari was issued. The secretary to the Govt was biased and the hearing the objections by
him for nationalisation of bus routes was violative of the principles of Natural justice.

v) Error apparent on the face of the record:

1. Rex Vs. Northemberland Compensation:

'A' was working in a Hospital. The National Health service Act was passed & under it he lost
his job. Under the Act, he was entitled to claim compensation on the basis of his total service
including his previous service under District council. The tribunal computed compensation on
the basis of his service in the Hospital, but it ignored his claim for service under District
council. Held, this was a error of the tribunal on the face of the record. The court issued
certiorari.

Hari Vishnu V. Ahmed:

Election Tribunal decided an election petition ignoring one of the Election Rules. The
consequence was that even those votes which were invalid were counted as valid. The
Supreme court held that this was an error on the face of the record. Certiorari was issued to
quash the decision.

WRIT OF HABEAS CORPUS ( To have the Body)

Meaning :

It is in the nature of a call to the detaining authority to produce the detinue before the court, in order to
let the court know on what grounds the detinue has been detained. If there are no legal grounds for
detention the detinue should be released. The writ may be addressed to any body or authority who has
detained. The origin is in Magna Carta 1215.

It is a great constitutional right and the first security of civil liberty. According to Blackstone, the writ
provides for a swift & imperative remedy in all cases of illegal restraint or confinement. The earliest
instance was in First Edward's period in England.

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Jurisdiction:

The supreme court under Art. 32 is empowered to issue the writ of Habeas corps for enforcement of
Fundamental Right: (Eg: Art 21 & 22) The High courts are empowered to, issue the writ for the
enforcement of fundamental right and any other right. Any person who has been detained or his next
friend may move the writ of Habeas corpus. The burden is on the detinue to prove that the detention is
without legal authority or with mala fides or in excess of authority.

Grounds:

The burden is on the detinue to prove that the detention is:

a. Without legal authority or

b. With mala fides or

c. In excess of authority.

d. Grounds are vague, irrelevant etc.

Petition:

The writ petition to the High court or supreme court for habeas corpus should be
accompanied by an affidavit stating the facts & circumstances. If the Divisional Bench is
satisfied that there is a prima facie case for granting the prayer of release, it issues a rule nisi
to the state (Detaining authority). It may grant interim "bail" to the detinue.

On hearing the parties, if the court, is of the opinion that the detention is not justified, it
issues orders to release the petitioner forthwith. (But, if it is justified, it discharges the rule
nisi).

Leading Cases:

1. Danel's case (1627)

2. Rakesh kaushik V. B. L.

3. H. Khatoon V. Home secretary Bihar.

4. Motilal V. State of Bihar.

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5. Liversidge V. Anderson.

6. In re Halley.

Emergency & Habeas Corpus:

In Makhan Singh V. State of Punjab, it was held that if a person is detained under Defence of
India Act, he could not be released for violation of Fundamental Rights. However if the order
was with mala fides or invalid he could be released under Arts 21 & 22 of the constitution.

However, in A.D. M. Jabalpur V. Shukla (1976), (Habeas corpus case) The supreme court,
held that during emergency the Fundamental Rights were suspended, and hence the remedy
ie, habeas corpus was not available. Detinue has no locus standi it held. This was an
unfortunate decision. Khanna J. wrote a powerful dissentient.

44th Amendment:

According to 44th Amendment, even during National Emergency, Arts. 21 & 22 cannot be
suspended. Hence this supersedes the Habeas corpus case. The position now compares well
with England, where even during I & II World Wars, Habeas corpus was not suspended.
(Liversidge V. Anderson, and, in re Halley).

Widened scope:

Writ may be issued in cases of preventive detention, illegal custody of wife, children,
contempt of the House, under trial prisoners, detentions by private persons, etc.

Writ of Mandamus

Literally it means "we Command" It originated in England. It is a peremptory order issued by

the High Court or Supreme Court in India. It demands masterly activity on the authority or
body or person to whom it is addressed. It commands him to perform some public legal duty
when the doing of a duty had been wilfully refused. When the performance cannot be

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enforced by any other means, the writ of mandamus may be sought after, as a Judicial
remedy, as it is effectual, convenient and beneficial.

It is available in all cases, where there is specific right but not a specific legal remedy. It is
the right arm of the Court. Magna Carta (1215) stated: Crown was bound neither to deny
Justice to any body, not to deny anybody right to Justice. Middleton's case of 1573 is the first
reported case in England. The objective is that Justice may be done ie, to remedy defects of
Justice, or, failure of Justice. Hence an extra-ordinary remedy.lt is a popular remedy as well.

To whom Issued:

It is issued to: President of India, Courts, Tribunals, Speaker of the House, Govt-(State or
central), local Authorities, muncipalities, City corporations, Panchayats, Universities, Taxing
or Election-Authorities, Public officals, other authorities (Art. 12)

Also to UPSC, Chief Justice, passport, or Revenue Authorities etc. Exception: It is not issued
to private parties.

Conditions :-

To issue a mandamus, the Supreme Court or the High Court should be satisfied, that:

1. The Petitioner has a specific legal right.

2. The Respondent State or Authority has a legal duty.

3. Writ is made in good faith.

4. The respondent has refused relief (ie. there should demand & refusal.)

5. There is no other efficacious, alternate relief.

Grounds for issue :

1) Protection of fundamental rights.

2) To compel a court to exercise its Jurisdiction.

3) To direct a public official or Authority or Govt, not to act if the. law declared by the court
is ultra vires.

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4) Issued against abuse of power, mala fide exercise of power, non-application of mind or
exercise of power, violating principles of natural Justice.

5) To compel Govt or public official to perform duty imposed by a statute.

List of Cases:

Laxman Popat Bihari v. St of. Gujrat,

The pension of petititoner was not released even on the "endless infructious enquries" for 15
years after retirement of the civil servant, Held, abuse of power, Mandamus was issued to
stop enquiries, and,order was issued to pay the pension, with arreas.

Venkatraman V. St of Madras: ( To enforce a fundamental Right)

A communal G.O. of Madras Govt was quashed as ultra vires Art 16 of the constitution, and
the court issued a mandamus to consider the petitioner for the magistrate's job on merit,
without looking to the ultra vires G.O.

Somnath V. St of.Rajasthan;

The court issued a mandamus to the muncipality restraining it from collecting "Taxes" as it
had no jurisdiction.

Salonath Tea Co.V. Supt of Taxes,

An order of assessment of taxes, was declared bad. But dept, refused to refund taxes already
paid. Mandamus was issued, to pay.

Maneka Gandhi v. union :

Right to go abroad was a fundamental right under Art.21 of the Constitution, and, hence
impounding passport without hearing the party was bad, and a mandamus could be issued.

Privy purse case :

A mandamus was issued to the President of India by the supreme court, not to give effect to
the presidential order abolishing privy purse.

Sawyer's case:

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The American supreme court issued to the President of U.S. not to enforce "steel seizure"
order.

Writ of Quo Warranto

This writ was issued in England to privilege belonging to the state. The object was to enquire
by what persons who usurped or claimed any office, franchise liberty or authority such claim
is made. The court enquires: "On what authority you are holding this office? It decides who
had the right to the office etc., If the answer is not satisfactory the court will oust the usurper
by issuing this writ.
Conditions :
i) The office must be statutory or constitutional
ii) It must be a substantive one.
iii) It should be a public office.
iv) The holder should be the occupier and user of the office.
The basis of the writ is to see that by an unlawful claim, a person does not usurp a public
office. The writ is discretionary, and, the court may refuse to issue if there is an alternative
remedy. This writ is a very powerful instrument against usurption of public office.
Statutory offices:
The examples are : Prime minister (Rao V. Indira Gandhi), Chief Minister, Advocate General
Speaker of the House, M.P., M.L.A., Mayor of corporation, - Chief Justice ( Lokhpal V Ray)
etc.
Who can move ?
The affected officer, or any person, with bona fide intention in public interest may challenge.
He need not be an aspirant for the office.
Cases:
1. Advocates may question the appointment of an Advocate General,
2. Bar Council member may question the appointment of chief justice
3. Kodanda Raman's case :
He questioned the validity of Shah commission.

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4. Reddy V. St. of A.P. :

Osmania University Vice Chancellor was terminated by amending the University Act by
reducing from 5 years tenure to 3 years Held, the amended law was not applicabe to him, but
to the new incumbent. Quo warranto was issued.
5. Uni of Mysore V. Govinda Rao :
G who was a reader in English petitioned for a Quo warranto writ against Sri Anniah Gowda.
The supreme court held that as per law the University could prescribe the qualifications, and
these were fulfilled by sri Anniah Gowda. Hence, quo warranto was not issued against the
University.
6. De facto doctrine :
This means it is the dejure officer who should exercises his powers and issues orders. But,
when a defacto officer exercise his powers, before he is ousted by the court under a quo
warranto, his actions, decisions or exercise of power would be considered as valid on grounds
of policy and necessity.
7. G. Rangaraju V. St. of. A.P.
The Supreme Court quashed the appointment of a sessions judge But, he had disposed of a
number of cases as de facto sessions judge. Held, his decisions were valid.

ADMINISTRATIVE DISCRETION

Rule of law demands that Govt. should be of laws and not of men. However, in the Govt. vast
administrative machinery, officers, while discharging their functions should invariably have
"discretions" to exercise their powers effectively. These administrative functions are general
and varied.

Administrative discretion means the "determination" reached by the Authority, on facts

(ascertained by it), on consideration of available evidence, and on the basis of policy,
efficiency & expediency of the Department.

Judicial review :

The general rule is that the courts will not interfere with the exercise of discretion, by
administrative authorities (Ranjit Thakur V. Union) However, they do interfere in public

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interest, when there is abuse or lack of jurisdiction. According to the Courts, the "discretion"
should be fair honest, based on reason & justice & should not be arbitrary, or unjust fanciful
or exercised with mala fides. "Judicial Review" is also the basic structure of the constitution.
(Minerva Mills V Union of India 1980).

In the recent landmark cases in England :

(i) Anismatic Ltd V. Foreign Compensation Commission; and

(ii) Tameside case, the House of Lords has widened the scope of Judicial review of
administrative discretion.

Scope:

The scope of judicial review of administrative discretion is very extensive, it not only deals
with abuse or excess of discretion, but extends to all areas of failure to exercise discretion e.g.
non application of mind, deciding under dictation, etc, Broadly, the review may be dealt with
under the following heads.

(i) Abuse of or in excess of discretion:

(a) It is essential that the authority should exercise its powers within the limits of the status or
Rules, otherwise it would be ultra vires on the ground of abuse or excess of jurisdiction.

Classical instances:

Dr. Markose an authority on Administrative Law, has a pointed reference to say, there is
Abuse of power when the mode of exercising valid power is unreasonable or improper.

He quotes an example :
"If a new & sharp axe presented by Father Washington ie, Congress, to young George
(Statutory authority), to cut timber from father's compound, is, tried on the father favorite
apple tree, there is a clear abuse of power !”
In A.G.V. Fulham corporation, the statute had empowered the corporation to run bath houses
& wash houses for the benefit of the public. The corporation opened a public laundry. This
was held excess of jurisdiction & hence Ultra Vires.

Mala fides :
The authority should act with bona fides ie, in good faith properly and lawfully. Mala fide
means malice ill-will, corrupt motive, vengeance or fraudulent intention. This may take many

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forms & may be express or implied. There may be malice in fact or malice in law. The
exercise of power with malafides vitiates the proceedings & hence would be void.
a) Malice in fact or factual malafides : This means the action taken is based on some
personal vengeance or motive or ill will: or with dishonest intention.
Shivraj Patil V Mahesh Madhaw:
Here, the Maharastra chief minister's daughter's M.D. marks card had been tampered to her
advantage, at the behest of the C.M. This was evident from circumstances. Commenting on
the deplorable decline of moral values at high levels, the supreme court quashed the result of
M.D. exam of the daughter of C.M.
In Express Newspaper V. Union, the union Govt’s notice, issued to Sri. Ram Goenka
chairman of Express Newspaper, of re-entry by Govt by terminating lease of land given to
him was held to be mala fides & politically motivated. & hence void.

Additional cases :
State of Punjab V. Gurdial Singh
The chief minister had engineered with vengeance & ill will to acquire lands: Held mala
fides. Zanida Bai V. St. of M.P.
b) Malice in law :
According to the Supreme court, if power is exercised without just or reasonable cause or
alien or different from the purpose of the statute, it would be malice in law & void. State of
Haryana V. Bhajanlal, it was held that prosecution against the C.M. of the state under the
provision of prevention of corruption Act was without any malice & hence proceedings were
not quashed.
Cases:
Mun.Council (sydney) V. Campbell, Pratap Singh V. St. of Punjab.
iv) Fraud on state or colorable exercise of power:
When power is exercised under "Color" or guise of legality but, in reality the purpose of the
statute is different, it amounts to "colorable" exercise of power.
1. Somavanti V. St. of Punjab (1963)
2. Vora V. St. of Maharastra.
3. Bangalore medical Trust V. Muddappa

Here, land preserved for Public Park was allotted at the instance of CM to a private nursing
home. Supreme Court held this was "colourable" & quashed the order of allotment.

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v) Unreasonableness : This includes many things. Taking into consideration irrelevant

facts, omitting relevant facts, exercising power for a collateral purpose etc. e.g.
"fixing wages as it may think fit" in the statute does not mean the authority may fix
Rs 3 per day . It should mean "reasonably think fit".

Hence, if the decision of the authority is "perverse", "outrageous" or so absurd that the person
"must have taken leave of his senses" (Lord Scarman in Notinghamshire case), it is void &
Ultra Vires.

The House of Lords in the recent TAMESIDE case ruled that if the statute says "if the
minister is satisfied" it means "if reasonably satisfied "; that means that though subjective
satisfaction of the authority is to be based, it should not be on some personal opinion but
should be on objective grounds from which reasonableness could be inferred." This is a
landmark decision on judicial control.

Non exercise of discretion :

The administrative authority may fail to exercise discretion by non application of mind, or, by
deciding on the dictates of others, or by sub delegating this power to another. In all these
circumstances, the decision is Ultra Vires.

The authority should apply his mind to the facts & circum stances of the case on hand. If he
acts mechanically, without a sense of responsibility, there is failure of exercise of discretion.
Jagannath V. St. of Orissa, There was non application of mind of Home minister when the
detention order was based on two grounds, the first one or the second. His order was quashed.

Leading case :

Barium chemicals Ltd. V. Company law Board :

Central Govt. Could issue an order of Investigation, under the Companies Act. on ground of
fraud. Govt issued order but No circumstances had been stated, on which opinion was
formed. Order was quashed.

If the authority vested with power under a statute simply acts under the dictators, of a
superior authority, he has not taken his own decision, as required by the statute, and hence his
decision is bad. In Com. of Police V. Govardhandas the commissioner had granted a licence

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to construct a theatre. But, under the directions of the State Government, he cancelled it. The
Supreme Court quashed the cancellation order.

LIABILITY OF STATE
Origin and development:

In England the concept "The King can do no wrong" had its sway: All the Courts in England
were under the Crown and hence he could not be sued. After the passing of the Crown
proceedings Act 1947 by the Parliament, the Ministers and Government would be liable for
contractual (and tortuous) obligations.

In India the East India Company was held liable in Mudalay V. Morton. The Government
of India Act 1935 had expressly made Government liable for contractual violations under Sn.
l75(3) This is reproduced in Art 299(1) of the Constitution.

Government liability in Contracts:

(i) Power or Authority to contract: Art.298:

The Executive power of the Union or of State extends to carrying on any trade or business
and to the acquisition, holding and disposing of property and also to the making of contracts
for any purpose. However, the Government will be liable only if the contact is within the
scope of Art 299(1) Art 299(1) prescribes certain essential requirements: -

(i) The contract made in exercise of executive power, must be expressed to be made
by the President or the Governor as the case may be.
(ii) The contract is to be executed by persons and in such manner as the President or
Governor directs or authorities.
(iii) The contract is to be executed on behalf of the President or Governor.

Essentials :

(i)The contract by the President or Governor :-

Though the contract should be in writing and to be executed as per Art 299(1) the courts
have held that writing is not essential in all circumstances. In Chatturbhuj V. Parashram, the

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Supreme Court held that a contract could be oral, or may be by correspondence; in an

emergency, a contract may be made by Government, without following the "ponderous legal
document couched in a particular form". A contact made by correspondence was upheld in
Union V. Rallia Ram (Tender case).

ii) Contract by authorized person:

The contact should be signed by the officer of the Government, who is duly authorised by the
President or Governor. If not so authorised, the contract is not enforceable. In Union V.
N.K.(P) Ltd, the Director had been authorised to enter into contract, but the secretary had
signed on behalf, of the President of India. Held, there was no authority and hence invalid.

In Bhikaji Jaipuria V. Union, a contract had been made by a firm with Railways for supply of
food grains. When the same was supplied the Railways refused to take delivery. The plea of
the Government that the Railway Divisional Superintendent had no authority to sign as per
rules, was rejected by the Supreme Court. Power may be granted, otherwise than by rules, it
held.

Name of President or Governor :-

It is essential that the Government contract should be made by the officer in the name of the
President or Governor. It is generally expressed in agreements as "on behalf of If this is not
done:, the contract is invalid. Karamshi V.St of Bombay, Here Government agreed ivith
Karamshi for supply of water to his "Cane farm". There were two letters but no contract as
required by Art.299(l).

Held: contract invalid. D.G .Factory V. St of Rajasthan, the I.G.Phad signed but it was not
"on behalf of Governor". Held Contract invalid.

Objective:

The objective of Art:299 (l )is to safeguard the Government and not to saddle the
Government with obligations, which are made by unauthorised officers or in excess of
authority. Saving public funds is essential. Hence, if the contract is invalid, the Government
cannot later ratify and make it valid.(Malamchand V. St. of.M.P) The reason is that when
there was no contract "at all", the question of ratification does not arise.

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Unjust enrichment:

From the interpretation of Art 299(1) by the Courts it is evident that the contract will be
declared invalid by the Courts, if any one of the three essentials is not complied with but this
may prove harsh and unjust in genuine cases. Hence, the courts have applied the doctrine of
"unjust enrichment" in such circumstances, in the interest of Justice.

This is in Sn.70 of the contract Act (quasi contractual liability). Hence, if the contract comes
within the scope of Sn.70 the affected party is entitled to claim compensation from the
Government. The Government cannot derive a benefit or retain money of the other party and
claim immunity by saying that the contract is invalid and hence it is not liable. In such
circumstances the courts will award, compensation to the affected party to prevent unjust
enrichment of the state at the cost of the aggrieved party. The conditions to be fulfilled for
unjust enrichment are:

(i) The person should lawfully do or deliver something to the other.

(ii) He should not have done it gratuitously (i.e, not done freely)
(iii) The other party should have enjoyed or derived benefit thereof.

The leading cases are:

(i) St. of W.B.V. B.K. Mondal
(ii) Mahavir Auto Store's case.
In St. of W.B.V.Mondal, a Government officer ordered for construction of a building for the
Government office as per the rules of the Dept. The contractor completed the building.
Government officer took possession and began using it. But, no payment was made. The
Government argued that as the contract was not according to Art 299(1), it was "no contract".

The Supreme Court held that there was no contract. However, it held that the Government
was liable to pay compensation, under Sn.70 of the contract Act ie., for unjust enrichment.
Thus, if the contracts fails under Art.299(l) the courts with a view to preventing injustice
have provided the remedy under Sn.70 of the Contract Act.

Tortious liability of State:

1. Origin and development:

The English maxim "The King can do no wrong" had its sway in England. But, the Crown
was made liable since the Crown proceedings Act 1947, for tortious and contractual

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obligations. In India, during the time of the East India Company, the Company was held
liable for the tortious acts of its servants. (P&O Steam Navigation Co V. Sec of State).

2. Under the Constitution:

Art 294(b) provides that the Union or State Government is liable for any act arising out of
any contract or otherwise. Here otherwise includes tortious liability. How far Union or State
is liable is made clear in Art.300(l) According to this, extent of liability is the same as that of
the Dominion of India and the Provinces, before the commencement of the Constitution.

Hence, the State is liable for tortious acts of its servants. However, if the state function is
Sovereign, it is not liable. Hence liable for non-Sovereign functions.

Cases:
1. Peninsular and Oriental Steam Navigation C.V.Secreatary of State(1861):

A servant of P. was traveling in a coach through the Government's dochyard. Due to the
negligence of D's servants, a heavy piece of iron carried by them fell and the horse of the
coach was injured. P used D. It was held that the maintenance of the dockyard was a non
sovereign function, and hence, the secretary of State was liable.

2. Rup Ram V. State of Punjab:

P. a motor cyclist was seriously injured when the driver of a P.W.D truck dashed against him.
It was held that the Government was liable. The Government's argument that at the time of
the accident,the driver was carrying materials for the construction of a bridge and that this
was a Sovergin function and hence, the State was not liable was rejected by the court.

3. State of Rajasthan V. Mrs.Vidyavati:

Vidyavati's husband died of an accident caused by the Government driver who was driving
negligently the Government jeep from the garage to the office. Vidyavati sued the
Government, for compensation. Held, state liable.

3. Kasturilal. V. State of U.P.

A was arrested on suspicion of having stolen gold. Gold so seized from him,was deposited in
police Malkhana. A was acquitted. In the meanwhile, the Head Constable had stolen the gold

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and escaped to Pakisthan. A sued the Govt. for the return of the gold or for compensation.
Gajendragadkar J held, that the State was not liable.

Reasons:

i) The Police Officers were within their statutory powers.

ii) The Authority of the police in keeping the property(gold) was a 'Soverign function'.

Held, Government not liable for the act done in the exercise of sovereign function.

Comment:
This decision is not satisfactory as the concept of Soverign function is extended beyond
limits. The Supreme Court itself has suggested that the remedy is to make a suitable law to
give-protection to individuals in such cases. No such law has been made so far.
Basavva V. St.of Mysore(1977)
In a case of theft, property worth Rs;10,000/-was recovered and kept in police custody. This
was stolen from custody. The Supreme Court held that payment should be made to the owner,
who had claimed the property.
State of Gujarat V Memon Mohamed.
Customs Authorities seized certain items, on the ground that the goods were smuggled.
Against the seizure order, the party had made an appeal. When this appeal was pending the
goods were disposed of under the order of a magistrate. But, later the appeal was allowed,
and seizure order was set aside, and, the authorities were directed to return the goods.
Held, by the Supreme Court, that the Government was a "bailee", and hence was bound to
return the goods.

Sovereign and non-Sovereign functions:

The distinctions between these two drawn by courts, in Kasturiala's case has become thin,
and, in many cases after that decision the Supreme Court has held that the State was liable.
Hence, the Ratio of Kasturilal's case is very much limited and the State is liable for tortious
obligations.

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PUBLIC INTEREST LITIGATION

ORIGIN:
The Origin of PIL may be traced to the United States. The Council for public interest law
stated in 1967 that legal services have failed to provide any remedy to some segments of the
population, who have significant interests. Such groups included the poor, the consumers, the
environmentalists, the minorities etc.

Hence, these were allowed representation before the Courts in the U.S. In the United
Kingdom, Lord Denning was responsible for PIL's remarkable development.

(Leading cases: A.G.V. Independent Broadcasting Authority; and: Reg V. Greater London
Council)

In India, it is the Supreme Court that has given an impetus to PIL in the Asiad case &
Transfer of Judges case. Since then a number of cases have been decided by it. The High
Courts have also followed the same lines of the Supreme Court, and today the PIL is a
recognized mode of Securing relief, which otherwise would not have been available.

Nature and Object:

Public Interest Litigation is considered as "participative Justice". It is to vindicate the rights

of many persons, even of masses, the poor, etc. As Rule of law demands that Justice should
be available to all. PIL is a co-operative or collaborative effort of public spirited persons, to
enforce through courts, the legal and constitutional rights of large sections of society, against
the State or its authorities. The general litigation is called" adversary system", but in PIL the
Govt or its Authority is always the Respondent.

The Court ensures implementation-of the legislative and executive socio economic
programmers of the State, to benefit the have-nots, the handicapped and the weaker sections
of the Society. Also ensures enforcement of their fundamental Rights. The Courts are
assertive and creative in their approach. When they pass an order in PIL the objective is to
enforce the Constitution and the law.

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Powers and Functions of Court:

The Courts have assumed jurisdiction in PIL cases, as time had come to assert that the courts
are also for the poor and the struggling masses half-clad and half-fed. Social Justice is the
signature tune of our Constitution. In this regard, JPIL is an effective instrument of social
Justice and has changed, in recent years, the entire theatre of law, holding better prospects
for the future.

Regarding procedure there much flexibility. If need be, the court may ignore the technical
rules of procedure. Hence a "letter to the Chief Justice may be treated as writ petition. Courts
have not insisted on regular writ petitions; being filed when public spirited persons move the
court:

i) to protect under trail prisoners languishing in Jails without trail.

ii) to protect inmates of protective Home in Agra.
iii) to protect Harijan workers employed in road construction in Ajmeer etc.

Leading cases:

1. Transfer of Judges (S.P.Gupta V. Union)

The Court held that the petitioners as lawyers, had sufficient interest to challenge the
"circular" issued by the| Home Ministry for the appointment and transfer of Judges.

2. Asiad Case (People union for Democratic rights V. union)

public spirited Organisations, filed a writ petition under Art32 piloting the cause of
construction-workers of Asiad houses, on the ground of violation of the various labour laws.
The court held that PIL writ was maintainable. It held that non-payment of minimum wage
was "forced labour" coming under Art 23 of the Constitution.

3. State of H.P.V. U.R.Sharma.

Letter addressed to Chief Justice of the High Court by some poor Harijans stating that an
access road to hilly area sanctioned in 1972, had not been taken up even in 1980 causing
great hardship. The Court considered the letter as writ petition. This was upheld by the
Supreme Court.

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4. Ratlam municipality V Vardichand:-

Some residents of Ratlam moved the Sub Divisional Magistrate under Sn.133 of Cr.P.C. for
an order of abatement of Nuisance and order for construction of drainage etc. The order was
issued. This was challenge by the municipality before the Supreme Court .

The Court rejected the municipality plea that residents had no locus stand. It directed to
provide sanitation drainage within a fixed period.

5. Bangalore Medical Trust V Muddappa:-

A piece of land had been earmarked for “Public Park" under the Development plan of the
City of Bangalore Improvement Act 1945. But at the instance of the Chief Minister, the
B.D.A. allotted the land to a private trust to construct a nursing home. Residents filed a writ
under Art 226 of the Constitution. The petition was allowed. The B.D.A. appealed to the
Supreme Court. Dismissing it, the court held that it had jurisdiction under PIL. The allotment
was held invalid and ultra vires.

5. Notable cases:

6. Veena Sethi V. St of U.P(there was illegal detention of per sons for over 2 to 3 decades)

7. K.Pahadiya V. St of Bihar (under-trail juveniles were kept in prison for over 8 years
without trail)

8. Karti V. St of Bihar

(Bhagalpur Blinding case Police has blinded accused persons as punishment-) order was
issued to rehabilitate them)

9. Sheela Barsi V .Union.-

Physically & mentally handicapped children kept in jail

10. Mehta V Union- (poisonous gas in factories-danger to people .etc)

11. Wadhwa V.St. Bihar.-(Issue of over 100 ordinances by Governer-could be challenged

under PIL.)

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Conclusion :-

PIL at best serves as just one more weapon of the Social activists and public spirited persons,
in their continuous and arduous task of espousing the cause of millions ,with the well-
intentioned fight for justice through. However P.I.L cannot be stretched too far. It is not an
end all and a cure-all of the ills of our Society.

MISCELLANEOUS

# Locus Standi:
Locus Standi means "place for standing". Hence it means the legal capacity to challenge or
question an act ordecision, by a party before the court.ie, it answers the question who may
apply or file a suit or a petition. The court strictly speaking entertains only .if he is an
aggrieved or interested person. But this is very much liberalized & widened.

Scope:

In the United States the strict rule of "standing" is liberalized and the court entertains if the
person is within the "zone of interests protected by statute or Constitution". (Falset V Cohen)
. In England ,the strict rule has undergone a change due to the dynamic activism of Lord
Denning. The person will be heard, if he has "sufficient interest". "I always like to hear, what
he has to say"-says Lord Denning. In India also the scope is very much widened, and hence
the rule that the person should be an "aggrieved person" is no longer applicable. Since the
leading case of "Transfer of Judges"(Gupta V.union), the scope of Locus Standi is windened
by the Supreme Court.

(i) In Habeas Corpus petitions, the court permits any other person, (next friend) to
move the court. Even letter by the detinue to the Chief Justice, was itself
considered by the Supreme Court as a Writ petition.
(ii) Tax payers or fee payers may challenge the illegal action of the Authority e.g.
granting of cinema licence, liquor-shop licence can be questioned by rate payer.

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(iii) In "quo warranto" ,any person in the public may challenge usurpation of public
office. Lawyers may question order of transfer of Judges, appointment of
Advocate General etc.
(iv) When the State or Public Authority has failed to carry out an obligation provided
in a Statute, any person to prevent "Public injury"-may move the court.

e.g. Ratlam Mun.Council V Vardichand. Here the petitioner was held to have Locus Standi to
question the municipality which had failed to construct drainage.

v) Public Interest litigation:

This has added a new dimension to the Judicial activism. The Courts in public interest
entertain petitions and provide relief, going beyond the bounds of Locus Standi. In keeping
with the socio-economic changes, the courts have used P.I.L. as a device to entertain petitions
in public interest. The leading cases are:

1. Transfer of Judges case

2. Bandhua Mukhi Morcha V Union

3. S.WadhwaV St. of Bihar

4. Fertiliser Corporation V Union

5. Mehta M.C. V Union

Thus traditional locus standi rule no longer holds the field. It has been widened to meet the
challenges of the modern society in all areas socio-economic, scientific, technological,
environmental etc.

Meaning:

The general rule is: " Souls Populist suprema lex" (Public interest is Supreme law). On the
basis of this, the Crown may refuse to disclose documents or answer questions, if such
disclosure or answer was injurious to "Public Interest". In Duncan v Camell a widow had
claimed damages for death of her husband due to negligence of Government contracts when a
submarine tank had killed 99 persons. Certain documents were summoned but the minister
claimed "crown's privilege". The court upheld the privilege. This was overruled, by the

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House of Lords in Conway V Rimmer. A constable had sued the prosecutor for malicious
prosecution, and, certain documents were claimed by the minister to be under privilege. The
Court rejected the plea. Hence, the dangerous executive power of "privileges" is subject to
Judicial scrutiny.

India:

Though Crown's privilege is not acceptable in India, the Executive or State privilege is stated
in Sn 123 of the Evidence Act. It states that evidence from unpublished official records
relating to any affairs of the State should not be given by any person, except with the
permission of the Head of the Department. Such person may give or withhold such
permission "as he thinks fit".

Leading cases:

1. Judges transfer case.

2. State of U.P V Raj narain.

3. State of Punjab V. Sukhdev Singh.

4. Reliance Petrochemicals V. Indian Express.

Scope:

The concept of "right to know", is based on democratic principle that people should know
what the Govt is doing. Hence disclosure by the State must be the rule, and, non disclosure or
privilege should be an exception. This was considered as part of the concept of "right to live"
under Art 21 of the Constitution(Reliance petrochemicals case). As per Sn.123 the Head of
the Department may "as he thinks fit" allow or refuse disclosure of documents. It this power,
given to him, absolute? The courts have held that under Sn.162 Evidence Act, it is the Court
which may decide finally.

The objection by Govt, on grounds of privilege, may be disallowed by court and it may call
for records. But, if the documents relate to the secret affairs of State, the court in public
interest will not call for disclosure. Further whether the refusal by Head of the Department
was in public interest or not, is decided by the court by examining the documents. The final
decision would always be with the court. According to Gajeridragadakar C.J. the sole and the

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only test which should determine the decision of the Head of the Department is injury to
public interest and nothing else.

Finality clause (Bar of Courts Jurisdiction) :

Statutes sometime provide for finality clause ie, the orders made by administrative authorities
or tribunals are "final". Question is whether such a clause excludes the jurisdiction of the
courts?

eg. (i) Order of Rent Controller is appealable to Rent Tribunal under Delhi Rent Control act.
The tribunal's order is final according to the Act.

(iii) order of App. Assistant Commissioner of Income-tax when appealed to I.T. Tribunal,
the order of the tribunal is "final". The word "final" is interpreted by the courts to
mean "final under the Act", and no appeal is allowed. This does not, however, mean
outster of jurisdiction of High Court under Art:226 & 227, and of Supreme Court
under Art 32 of the Constitution.

Final means "statutory finality". Hence judicial review is not excluded. The outster provision
may be indirect by providing no appeal, or it may be direct where it states that the Courts
Jurisdiction is barred. e.g. question of fact are final so far as Income Tax Tribunal is
concerned.

Judicial Review:

Even if there is a direct ouster clause, the courts interfere, if the order is:

1. Violative of principles of Natural Justice.

2. Without evidence.

3. Issued in excess of Jurisdiction.

4. Abuse of power etc.

Rule of interpretation:

Followed by the Courts is that exclusion should not be readily inferred. Judicial review by
High Courts and Supreme Court is always available. It is the basic Rule of lawwhich cannot
be taken away.

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Leading Cases:

1. Radha Krishna v. Ludhiana Union.

2. Dhulabhai V. State.

# Act of State

This is an exercise of power by the Executive, as a matter of policy, in its relation with
another state or aliens. In such a circumstance, the State claims immunity from the
Jurisdiction of the Court, to decide. Such an act of the representative of the State may have
the authority of the State or the State may ratify such an act.

Secretary of State V. Kamachi Bai Saheba.

The Raja of Tanjore, an independent sovereign, died leaving no male heirs. The East India
Company declared that as there were no male heirs, the Raj lapsed to the British Government.
The widow Kamachi Bai sued the company.

The Privy Council held that it was an 'Act of State' and hence, there was immunity. Hence,
she failed.

Buron V Denman:

P sued D, the captain of the British. Navy for releasing the slaves and for burning the slave
camps belonging to P. This act of D was ratified by the British Government. Held this was an
act of State, and hence, P failed.

Exception:

There is one exception. There is no act of State of a sovereign State against and its own
subjects.

Consumer Protection Act (CPA) Salient Features:

Public awareness of their rights and the necessity for quick and cheap relief, resulted in a
movement towards consumer protection. Parliament has enacted the C. P. A. in 1986 to
provide for better protection of consumers and for reliefs through consumer councils. There is
no court fee.

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Forums:

There is a three-tier system. The District Forum has jurisdiction for claims upto 5 lakhs; The
State Commission, from 5 to 20 lakhs. The National Commission, above 20 lakhs. The case
should be filed as early as possible but not later than 2 years.

Complaint:

The aggrieved person should file his complaint, detailing all the facts & explaining how the
opposite party is liable to you, and, how he has failed to address in spite of approaching him
giving notice etc. The relief claimed should be stated.

An affidavit should be filed with the Complaint. The affidavit is sworn to before the assistant
registrar of the Consumer forum. The name & address of the opposite party should be given
in the complaint. In Lucknow Development Authority V M.K. Gupta, the Supreme Court has
held that delay in allotment of flats, wrongful cancellation of allotment, delay in refund of
deposit etc. would amount to deficiency in Service.

Cause of action:

1. There should be defect loss or damage due to unfair trade practice of trader ie, opposite
party. Unfair trade practice means: Giving of misleading guarantees, or warranties, making of
bargain sales, or "Contest"- sales, Lottery system sales. Selling reconditioned goods as brand
new is unfair Practice.

2. Deficiency in services: When specific services do not fulfill their obligations, a complaint
may be filed. Dry cleaner, or tailor damaging your clothes; supplying defective items for
domestic purpose - Stove, heater etc.- Similarly public Utility Services are also answerable.
Consumer: The Complainant should be a Consumer as per the Act. A buyer of goods for
value, a person who gets services on payment is a Consumer.

Hence, a person who receives a gift, or free services is not a consumer for the purpose of the
Act. For false & frivolous complaints, the forum may impose a penalty on the complainant.

**THE END**

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